I once heard Penn Jillette (of Penn and Teller) say that he had learned from experience that if you enter into a contract with someone thinking that you’ll be able to use that contract to make him do something he doesn’t want to do, you’re setting yourself up for failure.
A contract, in this view, isn’t really about making someone else do something, but rather about writing down the things you’ve both agreed to do, so you can refer back to it in case you forget some of the details. That is, in order to be effective, a contract should be descriptive (‘This is what we’ve both agreed to do’) rather than prescriptive (‘This is what you’re going to do, whether you like it or not’).
It occurs to me that many of our problems in politics come from a related misunderstanding of the proper nature of law. Like a contract, a law should be a description of what everyone (or nearly everyone) has agreed to do, rather than a prescription to be imposed on some people by other people. And as with contracts, when we lose sight of this, we set ourselves up for failure.
That is, what makes a contract or a law effective is that the parties involved have agreed ahead of time to be punished for violating it. Without that agreement, you have… well, pretty much what we have now, where people increasingly view laws as obstacles to get around, rather than as agreements to live up to.
Once we see this, it’s also easier to see the path that led us here. We started with the idea that we could write down some agreements, call them ‘law’, and punish people for breaking those agreements. From there, it was a small step to realizing that we could use same form to pursue a very different purpose, i.e., to start punishing people for breaking ‘agreements’ that they never entered into.
A canonical example is the War on Drugs, where one segment of the population decided to use statutes and regulations as bludgeons to try to force another segment into accepting religious and moral views that the latter finds repugnant. So rather than agreement, we have endless struggle, which has led to the expansion and militarization of the police, massive expenditures for prisons, loss of civil liberties, erosion of respect for the law, and so on. We set ourselves up for these failures.
I agree with Confucius that the first step towards wisdom is to call things by their right names. I think we could make immense progress just by being careful to distinguish between sin (transgression against God), vice (transgression against oneself), and crime (transgression against someone else).
Of these three, only crime is a proper subject for law, because that is the only category for which we have a hope of coming to anything like universal agreement, and the only one for which enforcement is warranted. People can work out their sins with the clergy, and their vices with their therapists or friends, things that are best done outside of the criminal justice system.
We would also do well to distinguish between protecting people’s rights from infringement and protecting people from harm, especially harm that they cause themselves. Because those are mutually exclusive — you can protect rights, or protect people, but you can’t do both, because protecting some people requires infringing the rights of others.
For example, we try to protect people from carelessness by instituting licensing schemes, gun control laws, consumer product regulations, and other forms of prior restraint. In contrast, protecting rights requires allowing people to come to harm by making poor decisions, taking risks, and exercising other privileges of adulthood. We can’t do both.
We try to protect people from bad luck, or poor timing, or events beyond their control by instituting tax-subsidized charity programs. In contrast, protecting rights requires allowing people to make their own decisions about which charities to support, and on what terms, and at what level.
Remember Kelo v. New London? The Supreme Court in that case basically said that it is okay for a town or city to take property from a person and give it to a corporation, if it believes that the corporation will generate more tax revenue for the town.
In other words: We can vote on who can own what, based on how much revenue we think that distribution will produce.
This is basically treating people as farm animals. That is, we don’t let farm animals pursue happiness as they conceive it. Instead, we manage them in a way that produces the most resources for us to consume.
What feed schedule will give us optimum growth for that cow? Which antibiotics will minimize losses to disease? Which growth hormones will maximize feed conversion? What kind of chicken feed will produce the most, and the best-tasting eggs? What arrangement will let us collect those eggs most easily? How much can we let these pigs move around before they start burning too many calories? How hard can we work those oxen without wearing them out prematurely?
Isn’t this how we proceed with most government policies? To take just one example, discussions of taxes are never about the morality of using the threat of force to take what someone has created or earned. Nor do they consider what people or businesses might otherwise decide to do with what we’re taking from them.
Instead, these discussions are exclusively about which kinds of taxes at what rates will produce the most revenue. If you look closely at other policy discussions, you’ll find that many of them involve this same kind of optimization. This isn’t government. It’s farming — except we’re harvesting tax revenue instead of meat or milk or eggs or honey or labor.
And the people from whom it’s being harvested aren’t giving it up because they agreed to, any more than a chicken agrees to hand over its eggs . They’re doing it because other people who are ‘in charge’ (to use AOC’s phrase) have ‘agreed’ for them. On their behalf. For the greater good. As defined, not by the producers, but by the consumers.
All of which is to say, much of what we have now can’t properly be called ‘law’ at all, nor can the administration of it properly be called ‘government’. In the spirit of Confucius, I propose that we adopt a term that more accurately and more precisely describes what we’re doing to ourselves: ‘husbandry’.